Current ACTA drafts ban DRM interoperability laws

1,700 European ISPs and the Swedish Communications Minister both worry about …

It's not just bloggers who are upset about both the content and secrecy surrounding the Anti-Counterfeiting Trade Agreement (ACTA); the Swedish government is displeased, the European Union has concerns, and 1,700 European ISPs have now expressed their opposition to the process. While the worst fears of the ACTA worriers have yet to be realized, there's still plenty of opposition to a secretive treaty that attempts to push the Digital Millennium Copyright Act (DMCA) on the rest of the world.

The US drafted the section of ACTA dealing with Internet copyright infringement and recently unveiled it to negotiating partners at a meeting in Seoul, South Korea. The draft does not mandate "three strikes" Internet disconnection laws, nor does it propose to strip ISPs of their "intermediary" immunity from prosecution. But it does push the DMCA's anti-circumvention rules and "notice-and-takedown" provisions on the rest of the world, even going so far as to stop countries from making DRM interoperability laws (requiring Apple to open its Fairplay DRM, for instance, so that content from iTunes could be used on other devices.

The European Union's response to the ACTA draft has now predictably leaked, and it points out that this ban on interoperability rules goes against EU policy, which is that "compatibility and interoperability of the different systems should be encouraged."

The response also notes that Internet disconnections are hugely controversial in Europe at the moment. Although the ACTA draft would not mandate such rules, "three-strikes" laws are apparently cited in the document as one good example of how ISPs might be required to help out the content industries.

The fact that such important issues are being hashed out far from the prying eyes of legislators and constituents is also troubling to people like Sweden's Communications Minister, �sa Torstensson, who is visiting Washington, DC this week. According to the Swedish government, Torstensson will meet with people like FCC Chairman Julius Genachowski to talk about network neutrality, but also with a senior advisor to the US Trade Representative. The topic? ACTA.

"�sa Torstensson will present the opinion that the negotiations process should be opened up, so that interested parties and groups are given the opportunity to submit more detailed opinions about the contents of the negotiations and draft documents," says the release (translation). "She will also stress that Sweden cannot accept that ACTA opens up the possibility of a '3-strikes and you’re out' policy of internet access termination for violators of intellectual property rights."

EuroISPA, which represents 1,700 European Internet providers, has also issued a statement of concern (PDF) about the ACTA process. "EuroISPA is concerned that the attempt to implement such measures through a trade agreement, rather than a conventional legislative process, will not allow the various stakeholders, such as European citizens’ representatives, to enter the debate," it said.

EuroISPA president Malcolm Hutty is also concerned that ACTA will pare away some ISP immunity and that it will strongly encourage Internet disconnections. "Such heavy-handed measures would create a serious danger of undermining and restricting the open innovative space that lies at the very heart of the Internet’s success," he said. "This agreement would have a negative impact on Internet users without having an appreciable impact on fighting illicit use of copyrighted material."

ACTA negotiators have felt the pressure and continually pledge to open the debate to public participation—whenever there's a draft text to be shown. Negotiators have insisted for over a year that there's simply nothing to show except lists of proposals, but that stance is harder to maintain now that drafts of ACTA's main pillars have been produced and disseminated. Saying that the public needs to wait until the draft has achieved basic consensus it exactly what ACTA critics don't want to hear; they want input early, not when the basic text has been settled.